What are war crimes and did Israel commit any in Gaza? - opinion

Whether a country or other combatant commits war crimes is one of the most important questions we face today. Yet in a world fraught with opinion and agenda, even a question this fundamental and important can seem almost impossible to answer. Fortunately, there are legal and mathematical tools that remove opinion and agenda from the equation and help us to answer this critical question: international law itself and the civilian-to-combatant casualty ratio.

Case study: Israel vs Palestinian Islamic Jihad

Over the past week of fighting, the Palestinian Islamic Jihad organization fired over 1,200 rockets at Israeli communities and Israel launched numerous strikes targeting Palestinian Islamic Jihad equipment and personnel in the Gaza Strip.

According to Israeli and Palestinian sources, an Israeli civilian and a Palestinian civilian from the Gaza Strip were killed inside Israel by Palestinian Islamic Jihad fire, while 33 Palestinians (including combatants and civilians) were killed in the Gaza Strip, some by Israeli fire and others by misfired Palestinian Islamic Jihad rockets. As the recent conflict in Israel comes to a ceasefire, Palestinian spokespeople have accused Israel of war crimes, genocide and violating international law.

International law

A number of international laws and treaties prohibit intentionally targeting civilians in armed conflicts, including the Geneva Conventions, the Rome Statute and the Hague Conventions. It is notable that despite the popular adage, “All wars are crimes,” none of these agreements define war as per se illegal, but instead seek to “protect civilians in times of war” (emphasis added) as stated in the preamble to the IV Geneva Convention. 

These conventions specifically recognize the necessity of waging war in cases of self-defense, preventing genocide or certain other scenarios, as well as the possibility that civilians may come to harm unintentionally.

Nonetheless, the various conventions do require parties to “take all feasible precautions to minimize harm to civilians’’ (Articles 51 and 52 of Geneva Convention IV). This means that even if a military force is acting in self-defense or for some other legitimate legal justification, it is still obligated to take steps to avoid civilian casualties.

For this reason, it is essential to understand not merely whether an armed conflict took place or how many casualties occurred but also how the conflict was conducted, specifically that international law, as well as basic human decency, requires us to determine whether a party to an armed conflict is intentionally targeting civilians.

Determining a party’s subjective intent is one of the most difficult tasks in any area of law, international or otherwise. Fortunately, there are objective, mathematical tools available to help in this task.

Civilian to combatant casualty ratio

One of the most important international measures of a military’s level of care toward civilians, and a mathematical indication of whether it may be committing the war crime of intentionally targeting civilians, is the “civilian-to-combatant casualty ratio.” According to data from the United Nations, the global civilian-to-combatant ratio is 9:1, meaning that on average, wars produce a disturbing nine civilian casualties for every combatant.

According to data from the United States National Institutes of Health, the ratio produced by the United States in the 2003 Iraq War was 3:1, and in Afghanistan, various sources put the numbers at anywhere from 3:1 to 5:1 (sources include the Uppsala Conflict Data Program and Brown University’s Costs of War program).

In our case study of last week’s Operation Shield and Arrow, Israel achieved a ratio of 0.6:1, a significantly lower ratio of civilian casualties compared to most other conflicts in the world.

Specifically, the Palestinian Health Ministry states that 33 Palestinians were killed in Gaza over the past week. A review of Palestinian Health Ministry reports shows that the body does not generally distinguish between combatants and civilians, and therefore (despite its various public statements) it does not appear to collect the raw data necessary to provide an actual count of civilian casualties.

However, it is still possible to analyze the available data: Israel has identified at least 18 casualties as being Palestinian Islamic Jihad operatives, identifications which are confirmed by publicly available data, including names listed on the Palestinian Islamic Jihad website and other public materials. Another four casualties were identified as Palestinian civilians killed by Palestinian Islamic Jihad’s own rockets, as approximately 20% of the rockets fired by Palestinian Islamic Jihad at Israeli civilian communities fell short and landed in the Gaza Strip, according to a count by the IDF. This leaves a potential maximum of 11 Palestinian civilians killed by Israeli strikes.

These figures produce a civilian-to-combatant ratio on Israel’s part of 0.6:1, among the lowest in the world. By contrast, Palestinian Islamic Jihad killed six civilians and no combatants, including at least four Palestinian civilians in Gaza, a Palestinian civilian in Israel and an Israeli civilian for a total civilian-to-combatant ratio of 6:0.

The civilian-to-combatant ratio is not the only relevant factor in analyzing a conflict, but it is considered among the most important and one of the most free from extraneous factors, such as agenda and opinion.

By the numbers alone, Israel’s 0.6:1 ratio indicates an especially high level of care for civilian safety compared to other armed conflicts in the world and makes it highly unlikely that Israel was committing the war crime of intentionally targeting civilians. By the same mathematical analysis, Palestinian Islamic Jihad’s ratio of 6:0 seems to indicate a specific goal of targeting civilians rather than attempting to wage a conventional war against a military.

The Gaza-based Palestinian Islamic Jihad, and Hamas, which controls the Gaza Strip, are both officially designated as “terror organizations” by most of the international community, including the US, the European Union, the United Kingdom and others. The above figures are part of the reason why.

The writer is the CEO of RealityCheck, an organization dedicated to deepening public conversation through robust research studies and public speaking. He previously worked as a lawyer in the US and has served as CEO of HonestReporting. You can learn more about RealityCheck at www.RealityCheckResearch.org.